Bangalore District Court
Smt. Sudha vs Smt. H.T. Sundari on 4 February, 2017
Govt. of Karnataka
C.R.P.67]
TITLE SHEET FOR JUDGMENT IN SUITS
IN THE COURT OF THE XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
Form No.9 MAYOHALL UNIT, BANGALORE
(Civil)
Title sheet for
Judgment in Present: Sri. B.NARAYANAPPA, M.A, LL.B.,
suits (R.P.91)
(Name of the Presiding Judge)
OS NO. 27452 / 2009
(CCH-22)
Plaintiff:-
Smt. Sudha, aged about 34 years, D/o. Late Krishnappa, R/at No.14, 4th E1
cross, Vrushabhavathi Nagar, Kamakshipalya, Magadi Main Road, Bengaluru
560 079.
(By Sri C.H. Srinivasa, Advocate)
V/s.
Defendants:-
Smt. H.T. Sundari, major in age, W/o. Ramakrishna, R/at No.477, 3rd main,
B.S.K. 1st stage, I block, Srinagar, Bengaluru 560 050.
(By M/s. G.R. Anantharam & Associates, Advocates)
Date of Institution of the suit 14.12.2009
Nature of the (Suit or pro-note, suit for declaration and
possession, suit for injunction, etc.) Permanent Injunction
Date of the commencement of recording of the
Evidence. 21.02.2014
Date on which the Judgment was pronounced. 04.02.2017
Year/s Month/s Day/s
Total duration 7 1 20
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
.
2 O.S.No. 27452 / 2009
JUDGMENT
The plaintiff has filed this suit against the defendant seeking relief of permanent injunction restraining the defendant, her agents, servants, etc., from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff and for costs.
2. Brief facts of plaintiff's case are that:
The plaintiff is the absolute owner in peaceful possession and enjoyment of the suit schedule property having acquired the same under registered sale deed dated 7.12.2009 executed by one Chikkapillappa through GPA holder Sri Rudregowda. When the plaintiff acquired the suit schedule property the total sital area of the property was 620 Sq. Ft. and built up area was 450 Sq. Ft. consisting of residential building with RCC roof with amenities of electricity and water and all the revenue documents such as Khatha certificate, Khatha extract, tax paid receipt were standing in the name of GPA holder Rudregowda only. The plaintiff came to know that the suit schedule property is part 3 O.S.No. 27452 / 2009 and parcel of Khaneshumari No.129/1 of Kamkshipalya Grama, Yeshwanthapura Hobli, Bengaluru North Taluk at the time of execution of sale deed and it is assessed as Khaneshumari 129/A at Kamakshipalya Grama. The defendant without any right, title, possession over the suit schedule property came near the suit schedule property on 9.12.2009 and made an attempt to take possession of the suit schedule property. The plaintiff approached the Police, but they have not taken any action since the matter is of civil in nature. Hence the plaintiff has constrained to file this suit.
The cause of action arose on 9.12.2009. Hence this suit.
3. After registration of this suit, suit summons were issued to the defendant. In-response to the summons, the defendant appeared before this court through her counsel and filed written-statement denying all the material averments made in the plaint and contended that Late Sri Channapillaiah alias Chikkapillappa was the absolute owner of the property to the extent of 4 acres 29 guntas in Sy.No. 129/1 of Kamakshipalya, 4 O.S.No. 27452 / 2009 Saneguruvanahalli Dhakale, Yeshwanthapura Hobli, Bengaluru North Taluk. Out of the said land Bengaluru Development Authority acquired 3 acres 9 guntas. In the remaining 1 acre 20 guntas Late Channapillaiah alias Chikkapillappa had formed a layout consisting of 46 sites of different dimension. Out of which property bearing No.38, 39, 44 and 45 were sold under registered sale deed dated 25.3.1981 in favour of this defendant and she was put in possession. The defendant obtained sanction plan to construct building and NOC from the Saneguruvanahalli Grama Panchayath, for electricity and water supply. In the year 2000 some strangers tried to encroach upon the property of the defendant. Hence she filed a suit in OS 5929/2000 for declaration of her title and mandatory injunction and the said suit was came to be decreed on 14.8.2009 in favour of defendant herein and Ex. Petition No.192/2010 for execution of judgment and decree is pending. The defendant has paid taxes to the property. The defendant obtained Encumbrance Certificates of the sites bearing Nos.38, 39, 44 and 45 formed in Sy.No. 129/1, 5 O.S.No. 27452 / 2009 which do not disclose any encumbrance at all. The vendor of the plaintiff namely Channapillaiah alias Chikkapillappa had no right, title or interest to alienate the schedule property in favour of the plaintiff. The document of alienation between the plaintiff and one Rudregowda as power of attorney holder of Channapillaiah alias Chikkapillappa is not binding on this defendant. The defendant learnt that Chinnapillaiah alias Chikkapillapa died in the year 2002 leaving behind his LRs. No power of attorney has been produced by the plaintiff. The power of attorney alleged to have executed by Channapillaiah alias Chikkapillappa in favour of Rudregowda is void ab-initio not enforceable, since the principal died in the year 2002. The Khatha in respect of the property issued by Corporation Authority in the year 2008 in favour of Rudregowda and the sale deed dated 7.12.2009 executed by GPA holder Rudregowda in favour of plaintiff are not binding on the defendant. The identity of the schedule property made in the plaint is not correct. The plaintiff has not approached the court with clean hands and she has suppressed the 6 O.S.No. 27452 / 2009 material facts. The suit is not valued properly and court fee paid is insufficient. For all these reasons, the defendant prays to dismiss the suit of the plaintiff.
4. On the basis of the above Pleadings, following Issues have been framed:-
(1) Whether plaintiff proves that she is in lawful possession and enjoyment of the suit schedule property as on the date of the suit?
(2) Whether plaintiff proves that defendant is illegally interfering into her possession in suit property?
(3) Whether plaintiff is entitled for decree of permanent injunction as sought in the plaint?
(4) What decree or order?
5. In order to prove the case of plaintiff, the SPA holder of plaintiff by name Prakash.D.K has filed his affidavit by way of examination-in-chief, same was taken as PW1 and got marked documents Ex.P1 to 18 and closed the side of plaintiff. On the other hand, the defendant, has filed her affidavit by way of examination-in-chief, same was 7 O.S.No. 27452 / 2009 taken as DW1 and got marked the documents at Ex.D1 to 15 and closed side of the defendant.
6. I have heard the arguments of both the sides. Plaintiff counsel has also filed written arguments.
7. My findings to the above Issues are as follows:
Issue No.1) ........In the negative Issue No.2) ........In the negative Issue No.3) ........In the negative Issue No.4) ........As per the final orders, for the following:
REASONS
8. Issue Nos. 1 to 3:- Since these issues are inter linked with each other they are taken up together for common discussion in order to avoid repetition of facts.
9. The learned counsel for the plaintiff has vehemently argued that the plaintiff is the owner and she was in lawful possession and enjoyment of the suit schedule property as on the date of the suit having acquired the same under registered sale deed dated 7.12.2009 and the total area 8 O.S.No. 27452 / 2009 of the suit schedule property is 620 Sq. Ft. and built up area is 450 Sq. Ft., which consists of residential building with RCC roofing having amenities of electricity and water facility and the plaintiff is residing therein and got changed Khatha in her name and has been paying taxes to BBMP in respect of the suit schedule property. The defendant having no manner of right, title or interest over the suit schedule property on 9.12.2009 came near the same alongwith Goondas with deadly weapons with an intention to demolish the existing building. She resisted the illegal act of defendants and approached jurisdictional police and has constrained to file the suit and further submits that the evidence placed on record on behalf of plaintiff and documentary evidence produced would clearly establish that as on the date of suit the plaintiff was in lawful possession and enjoyment of the suit schedule property. In view of defendant tried to interfere with the possession of the plaintiff over the suit schedule property the plaintiff has come up with the present suit seeking the relief of 9 O.S.No. 27452 / 2009 permanent injunction. Hence, he prays to decree the suit as prayed for.
10. On the other hand the learned counsel for the defendant has argued that one Chinnapillaiah alias Chikkapillappa was the absolute owner of the land in Sy.No.129/1 of Kamakshipalya, Saneguruvanahalli Dhakale, Yeshwanthapura Hobli, Bengaluru North Taluk, measuring 4 acres 29 guntas. Bengaluru Development Authority acquired 3 acres 9 guntas, out of the said land and in the remaining land measuring 1 acre 20 guntas the said Channapillaiah alias Chikkapillappa had formed lay out and carved out 46 sites of different dimensions and sold site No.38, 39, 44 and 45 in favor of the defendant on 25.3.1981 under registered sale deed. Therefore, the defendant has become owner of the said four sites, totally measuring 2.2 guntas and she is in possession and enjoyment of the said property. The learned counsel for defendant further submits that the defendant has purchased the said site prior to purchase of suit schedule property by the plaintiff. The 10 O.S.No. 27452 / 2009 defendant has purchased four sites totally measuring 2.2 guntas under Ex.D3 on 25.3.1981, whereas the plaintiff has purchased the suit schedule property on 7.12.2009, subsequent to purchase of four sites by the defendant and the learned counsel for the defendant further submits that the plaintiff said to have purchased the suit schedule property through one Sri. Rudregowda, the GPA holder of Chikkapillappa. The said Rudregowda is none other than husband of the plaintiff and the GPA was came to be executed on 8.11.2000 by the said Chikkapillappa in favour of Rudregowda and he further submits that the said Chikkapillappa passed away on 26.4.2002 and he relied upon Ex.D14 the death certificate of Chikkapillappa and he further submits that after the death of Chikkapillappa-GPA holder Rudregowda had executed sale deed in favour of the plaintiff in respect of the suit schedule property on 7.12.2009. When Chhikkapillappa who had executed GPA in favour of Rudregowda had expired, the GPA said to have been executed by Chikkapillappa in favour of Rudregowda cease to be exist alongwith death of executant 11 O.S.No. 27452 / 2009 Chikkapillappa. Therefore, the GPA holder Rudregowda of Chikkapillappa, had no right to execute Ex.P1 sale deed in favour of the plaintiff in respect of the suit schedule property. Therefore, he contends that the Ex.P1 registered sale deed registered in the name of the plaintiff in respect of the suit schedule property is a sham document and it has no evidentiary value in the eye of law. Therefore, he submits that the plaintiff cannot rely upon Ex.P1 the alleged sale deed and he further submits that in view of the plaintiff has purchased the suit schedule property subsequent to purchase of property by the defendant and moreover the defendant has purchased larger extent than the extent than the extent of suit schedule property and he further submits that the suit schedule property is situated within the property purchased by the defendant i.e., the suit schedule property is a piece and parcel of the property purchased by the defendant. Therefore, the suit schedule property is not in existence since the same is included in the property of defendant. Therefore, he submits that the plaintiff has not approached the court with clean hands. Hence the plaintiff cannot 12 O.S.No. 27452 / 2009 maintain the present suit. Therefore, he prays to dismiss the same.
11. PW1-Sri Prakash.D.K., power of attorney holder of the plaintiff in his affidavit evidence has reiterated and reaffirmed the contents of plaint averments and got marked documents Ex.P1 to 18. In his cross examination he has stated that the plaintiff is his sister. He is studying in LL.B. and doing work with deed writer. Because of the defendant tried to interfere with the possession of the suit schedule property by the plaintiff the suit is filed. The plaintiff is working in Garments and suffering from leg pain and hence she is unable to come to the court. But, he has not produced any medical certificate. He does not know the defendant. He has produced electricity bill, water bill, khatha, document of betterment charges paid, tax paid receipt and sale deeds to show ownership of the plaintiff over the suit schedule property. He does not remember exact date of execution of the power of attorney in favour of Rudregowda by Chikkapillappa. Rudregowda is the husband of the 13 O.S.No. 27452 / 2009 plaintiff and he and Jairam are witnesses to the sale deed. He does not know that after execution of the power of attorney in favour of Rudregowda, Chikkapillappa was alive or not. He denied the suggestion that in the year 2002 Chikkapillappa died. Rudregowda had constructed a house in the suit property. He does not know regarding selling of 2.2 guntas i.e., four sites bearing Nos. 38, 39, 44 & 45 by Chikkapillappa on 25.3.1981 in favour of defendant in Sy.No.90/1. He was present at the time when the defendant tried to interfere over the suit schedule property. He denied the suggestion that the defendant is in possession and enjoyment of the larger extent than the schedule property. He denied the suggestion that the plaintiff is not in possession and enjoyment of the suit schedule property. He does not know regarding declaring the defendant as the absolute owner of the suit schedule property in O.S.No.5929/2000. In the year 2009 the suit schedule property was registered in the name of the plaintiff. Prior to 2009 the suit schedule property was standing in the name of Rudregowda. He denied the suggestion that the sale deed 14 O.S.No. 27452 / 2009 dated 7.12.2009 has been created in the name of the plaintiff and he admits the suggestion that after filing of the suit, khatha was changed in the name of the plaintiff. He further denied the suggestion that the documents which are produced are all created.
12. DW1/defendant in her affidavit evidence has reiterated and reaffirmed the averments made in written statement and got marked documents Ex.D1 to 15. In her cross examination by the learned counsel for plaintiff she has stated that Sy.No.129/1 belongs to Saneguruvana Halli, Yeshwanthapura Hobli. She does not know the total extent of Sy.No.129/1 and its boundaries. The said Sy.No. belongs to Channa Pillaiah alias Chikka Pillappa, which is his ancestral property. The said Sy.No. has been acquired by the BDA. The said Chikka Pillappa, has formed layout in the year 1981 after converting the said land into non- agricultural purpose. She has purchased the property under Ex.D3 and at that time she has collected layout plan. In Ex.D3 the extent is shown as 2.2 Guntas in Sy.No. 129/1. 15 O.S.No. 27452 / 2009 She has purchased property under Ex.D3 measuring East to West 60 Ft. and North to South 76 Ft. She denied the suggestion that Ex.D10 to 13 are created documents. She had applied for change of Khatha, but the Tahsildar has not changed the same in her name. She denied the suggestion that the plaintiff had put up construction on the suit schedule property and residing therein. The witness volunteers that the said construction of structure was put up on her property by one Lakshmamma by encroaching the same. She denied the suggestion that the plaintiff has taken electricity, water connection. The witness volunteers that the plaintiff encroached her property and put up building and taken electricity and water connection and got changed Khatha in her name. The property purchased by her under Ex.D3 is within the limits of BBMP since 1987. She denied the suggestion that she does not know the exact location of the property purchased under Ex.D3. She denied the suggestion that only with an intention to harass the plaintiff she is deposing falsely.
16 O.S.No. 27452 / 2009
13. The plaintiff has relied upon Ex.P1 the sale deed dated 7.12.2009 executed by Rudregowda GPA holder of Chikkapillappa and also relied upon Ex.P2 GPA executed by Chikkapillappa in favour of Rudregowda dated 8.11.2000. Whereas the defendant has relied upon Ex.D14 death certificate of Chhikkapillappa which shows that Chikkapillappa died on 26.4.2002. So, it appears that after the death of Chikkapillappa, who had executed GPA in favour of Rudregowda, the said Rudregowda had executed Ex.P1 sale deed in favour of the plaintiff on 7.12.2009. In view of death of Chikkapillappa on 26.4.2002, the GPA executed by him in favour of Rudregowda as per Ex.P2 ceased to be exist along with the death of Chikkapillappa. Therefore, after the death of Chikkapillappa the GPA holder Rudregowda had no right to execute Ex.P1 the sale deed in favour of the plaintiff. Hence, Ex.P1 appears to be not genuine document. The plaintiff has relied upon Ex.P3 Khatha Extract, which shows that the Khatha was standing in the name of Rudregowda-GPA holder, who is none other than husband of the plaintiff. The plaintiff has also relied 17 O.S.No. 27452 / 2009 upon Ex.P5 Khatha certificate in respect of the suit schedule property and Ex.P4 Khatha extract which are standing in the name of the plaintiff and the same was changed in the name of the plaintiff on 9.1.2012 subsequent to filing of the present suit. The plaintiff also relied upon the Ex.P3 seven tax paid receipts which shows that Rudregowda, had paid tax in respect of the suit schedule property and the plaintiff has also relied upon Ex.P3 tax paid receipt for the year 2012-13 which shows that the plaintiff has paid tax for the year 2012-13 in respect of the suit schedule property subsequent to filing of the suit.
14. The document relied upon by the plaintiff such as Ex.P3 tax paid receipts, Khatha extract at Ex.P4(1) and Khatha certificate Ex.P5(1), which are standing in the name of Rudregowda on the date of suit. But subsequent to filing of the suit the plaintiff got changed Khatha in her name, in respect of the suit schedule property, which could be seen from Ex.P4(2) Khatha Extract and Ex.P5(2) Khatha Certificate. So, from the documentary evidence produced 18 O.S.No. 27452 / 2009 by the plaintiff it is crystal clear that as on the date of suit, the plaintiff was not in lawful possession and enjoyment of the suit schedule property. Though the plaintiff has relied upon Ex.P1 the registered sale deed in respect of the suit schedule property registered in her name on 7.12.2009, the year in which the suit was filed, but as on the date of filing this suit, khatha of the suit schedule property was not standing in the name of the plaintiff and she has also not paid taxes to the suit schedule property as on the date of the suit, but Khatha of the suit schedule property was in the name of Rudregowda, GPA holder of Chikkapillappa and he had paid taxes. But subsequent to filing of the suit, khatha of the suit schedule property was changed in the name of the plaintiff. Therefore, the documents produced by the plaintiff clearly goes to show that as on the date of the suit the plaintiff was not in lawful possession and enjoyment of the suit schedule property. It is pertinent to note that the plaintiff except filing the suit, not at all prosecuted the same, but the same has been prosecuted by her GPA holder PW1. In view of the plaintiff remained absent before the court 19 O.S.No. 27452 / 2009 and as she has not prosecuted the case on her own, which shows that the plaintiff has not shown much interest in proving her lawful possession and enjoyment of the suit schedule property as on the date of the suit.
15. The plaintiff has approached the court by filing the present suit seeking relief of permanent injunction against the defendant. If the plaintiff is able to prove her lawful possession and enjoyment of the suit schedule property as on the date of the suit, she will succeed otherwise no. In the present case on hand, as I have already stated above, no documents are produced by the plaintiff to show her lawful possession and enjoyment of the suit schedule property as on the date of the suit. But the documents produced by the plaintiff in respect of the suit schedule property such as Khatha, tax paid receipts, goes to show that as on the date of the suit the said documents in respect of the suit schedule property were standing in the name of Rudregowda. But the same were not standing in the name of the plaintiff but subsequent to the filing of the suit, 20 O.S.No. 27452 / 2009 Khatha of the suit schedule property was changed in the name of the plaintiff and she had paid taxes. Therefore, it is crystal clear that the plaintiff basing upon Ex.P1 registered sale deed only, since the same has been registered in the year 2009, has filed the present suit in the year 2009 claiming that she was in lawful possession and enjoyment of the suit schedule property as on the date of the suit. But I have already stated above, no documents are produced by the plaintiff to show her lawful possession and enjoyment of the suit schedule property as on the date of the suit. Therefore, I am of the considered view that the plaintiff has failed to prove that she was in lawful possession and enjoyment of the suit schedule property as on the date of the suit. When the plaintiff has failed to prove her lawful possession and enjoyment of the suit schedule property as on the date of the suit, the alleged interference of the defendant over the suit schedule property does not arise at all. Therefore, I am of the considered view that the plaintiff is not entitled to the relief of permanent injunction as sought for. Hence, I answer issue No.1 to 3 in the negative. 21 O.S.No. 27452 / 2009
16. ISSUE NO.4:- In-view of the reasons stated on Issue Nos.1 to 3, above, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed.
2) No order as to costs.
3) Draw decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected and then pronounced by me in the open court on this the 4th day of February, 2017).
(B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
22 O.S.No. 27452 / 2009SCHEDULE All that piece and parcel of residential property bearing Corporatin No.14, PID No.17- 117-14, Ward No.17, B.B.M.P. situated at 4th 'I' 1st cross, Magadi Main road, Vrushabhavathi Nagar, Saneguruvanahalli Dhakale, Yeshwanthapura Hobli, Bengaluru North Taluk, measuring in an extent of East - West 15'5" (Fifteen and half feet) and North - South 40' (Forth feet) Total 620 Sq. Feet, sital area, including 450 Sq. Feet, RCC roofed building with amenities like water and electricity and bounded on :-
East by Remaining Eastern Portion
measuring 15'5" x 40"
(house belongs to Ramadevi)
West by House of Lakshmamma
North by 20 feet Road
South by Property of Kempanna.
(B.NARAYANAPPA)
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT; BANGALORE
23 O.S.No. 27452 / 2009
ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW1 Smt. Sudha 21.2.2014 LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P1 Copy of sale deed
Ex.P2 Copy of GPA
Ex.P3 Copy of tax paid receipts 8 in Nos. Ex.P3(1)to (8)
Ex.P4 Khatha extracts two in Nos.Ex.P4(1) and Ex.P4(2)
Ex.P5 Khatha certificates (2 in Nos) Ex.P5(1)and P5(2)
Ex.P6 Electricity bill
Ex.P7 Water bills
Ex.P8 Voter ID
Ex.P9 Betterment charge paid receipt
Ex.P11 to 14 BWSSB bills
Ex.P15 to 18 Electricity bills
LIST OF WITNESSES EXAMINED FOR THE
DEFENDANT/S:
DW1 Smt. H.T. Sundari 27.1.2016
LIST OF DOCUMENTS MARKED FOR THE
DEFENDANT/S:
Ex.D1 Certified copy of RTC
Ex.D2 Certified copy of building plan
Ex.D3 Certified copy of sale deed
Ex.D4 Certified copy of NOC
24 O.S.No. 27452 / 2009
Ex.D5 Certified copy of judgment in OS 5929/2000
Ex.D6 Certified copy of decree in OS 5929/2000
Ex.D7 Certified copy of Tax paid receipts
Ex.D8 Certified copy of tax assessment extract
Ex.D9 Certified copy of Demand register
Ex.D10 to 13 Certified copy of four Encumbrance Certificates Ex.D14 Death certificate Ex.D15 Certified copy of approved plan (B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
25 O.S.No. 27452 / 200904.02.2017 Pltff: by Sri CHS Judgement pronounced in the open court Defendant:by Sri GRA (Vide separate detailed Judgement) Judgment The suit of the plaintiff is hereby dismissed.
2) No order as to costs.
3) Draw decree accordingly.
(B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE